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TMI Blog2010 (2) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... ls, Tedesara. Three show-cause-notices being C. No. V (72) 15-63/Off/98/Adj/21351-56 dated 9-9-1999 involving Modvat credit of Rs. 2,67,364/- availed during the period September, 1994 to August, 1995; C. No. V (Ch: 72) 15-73/Off/JC/2000/Adj/5123 dated 7-3-2000 involving Modvat credit of Rs. 71,024/- availed during the period March, 1995 to April, 1995; and C. No. V (MOD) 15-03/R/RJN/BHI/2000/Adj/16470 dated 9-8-2000 involving Modvat credit of Rs. 1,00,878/- availed during the period August, 1995 to October, 1995 were issued to the appellant proposing disallowing and recovery of aforesaid Modvat Credit from the appellant under Rule 57(I)(II) of the Rules, 1944 read with Section 11A of the Central Excise Act, 1944 (for short 'the Act, 1944') by invoking the extended period of five years. The show-cause- notice also proposed penalty against the appellant under Rule 173Q of the Rules, 1944 along with mandatory penalty equivalent to the amount disallowed under Rule 57-I[4] of the Rules, 1944 read with Section 11AC of the Act, 1944. The appellant filed detailed reply to the show-cause-notices. According to the appellant, it produced documentary evidence in its support. 3. The adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... QUESTIONS OF LAW (1) Whether the learned Appellate Tribunal failed to exercise its jurisdiction while granted unconditional stay and confirmed vide stay order No. 547-50/05 NB SM dated 26-5-2005 that the Appellant have filed documentary evidence in support of the receipt and use of material and payments made to suppliers, the same facts were not taken into account while passing the Final Order appealed against. (2) Whether the learned Appellate Tribunal failed to exercise its jurisdiction by ignoring the Additional Grounds of Appeal filed by the appellant vide letter dated 25-10-2004 along with copies of RG 23 A Part-I, Stores Receipt Voucher, Ledger Account with suppliers, weighment slips wherever available in support of the fact that full material was received, accounted for, paid for, & consumed in the manufacture of the final excisable products on the Appellant & 2. (3) Whether the learned Appellate Tribunal failed to exercise its jurisdiction by not mention the Additional Grounds of Appeal filed by the appellant and appreciate that imposition of Mandatory Penalty under Rule 571(4) read with Section 11AC equivalent to the amount of Central Excise Duty confirmed against the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord before the Appellate Tribunal. Accordingly, it has been stated in Para No. l of the Order appealed against "in the impugned order, after going through the evidence on record, the finding is that the appellant have received no inputs and there was only paper transaction between the appellants and supplier. The finding is also that the unit of supplier of input was closed during the relevant period. However, modvatable invoices were issued in favour of the present appellants to facilitate availment of modvat credit. Against this finding, the contention of the appellant is that actually they have received the inputs and entries were made in the statutory record. It is also contended by the appellants that they have sufficient balance in their modvat account as the appellants were also exporting the goods without payment of Duty. The appellants will not get any benefit by availing the wrong modvat credit. The appellants also submitted that in some cases, there are weighment slips, which show that the inputs were received by the appellants". (6) Whether the learned Appellate Tribunal failed to exercise its jurisdiction by stating in para 3 of Final Order, that "In this case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority and Appellate Commissioner. The Respondent No. 2 failed to appreciate that it has simply been stated in the Order-in-Original that the Appellant & 2 countered & he could not give any satisfactory explanation to the same. Now this is certainly a debatable issue. Either the Appellant & 2 could not satisfactorily explain or the learned adjudicating authority was not satisfied with his reply. The learned Adjudicating Authority, the Appellate Commissioner as well as the Respondent No. 2 also failed to even discussed on the facts that if : a. M/s. Jain Udyog, Tedesara and M/s. Tara Re-rolling Mills, Tedesara were closed, b. Did not have power or had no electricity generation, c. Did not receive raw material in the factory premises for 3 full years. a. How the payment of Duty on goods not manufactured by the supplier manufacturers was being accepted, b. How was their RT-12 Return showing manufacture of goods within their factory premises being finally assessed, and, c. How the concerned Authority was accepting their Invoice Book intimation every time ? (9) Whether the learned Appellate Tribunal failed to exercise its jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e alternative raw materials then which was mentioned any invoices - Penalty set aside - Rule 25 of the Central Excise Rules, 2002. (12) Whether the learned Appellate Tribunal failed to exercise its jurisdiction by ignoring the complete track record filed by the Appellant showing the following : a. Receipt of inputs, b. Issue of inputs for manufacture of excisable final products, c. Payments made by cheque to the supplier. d. Manufacture of excisable final product in the factories of Appellant, and, e. Clearance of final excisable products from respective factories of the Appellant on payment of appropriate amount of Duty. (13) Whether the learned Appellate Tribunal failed to exercise its jurisdiction by not appreciating that if the Appellant did not receive inputs, then how and from which inputs did they manufacture the excisable final products ? So also, if the supplier was closed, then why the Returns filed by the suppliers showing manufacturing activity within their factory were finally assessed and not objected to by the Revenue ? (14) Whether the learned Appellate Tribunal failed to exercise its jurisdiction by not appreciating that if the documents show that the input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. 11. Section 260-A of the Income Tax Act, 1961 (for short 'the Act, 1961') reads as under : "260A. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal [before the date of establishment of the National Tax Tribunal], if the High Court is satisfied that the case involves a substantial question of law. 12. The provisions of Section 35G of the Act, 1944 and the provisions of the Section 260-A of the Act, 1961 are pari materia. Thus, the Supreme Court in P. Mohanakala (supra) dealing with the provisions of Act, 1961 with regard to question of law observed as under : "26. Relying on the decisions of this Court in Bejoy Copal Mukherji v. Pratul Chandra chose and Orient Distributors v. Bank of India Ltd. Shri Iyer, learned Senior Counsel contended that issue relating to the propriety of legal conclusion that could be drawn on basis of proved facts gives rise to a question of law and, therefore, the High Court is justified in interfering in the matter since the authorities below failed to draw a proper and logical inference from the proved facts. We are unable to persuade ourselves to accept the submission. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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